* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. This court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 29 1999 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. MARLON LYLE BECENTI,

Defendant - Appellant. No. 98-2013 (D. Ct. No. CR-97-285-JC) (D. N. Mex.)

ORDER AND JUDGMENT *

Before TACHA , BALDOCK , and MURPHY , Circuit Judges.
Defendant-Appellant Marlon Lyle Becenti pled guiltyto second degree murder in violation of 18 U.S.C. § 1111. The distr ict court sentenced him to 151 months imprisonment followed by a five-year period of supervised release. Mr. Becenti now appeals his sentence. He argues that the district court erred when it enhanced his sentence based on a finding that the v ictim was vulnerable pursuant to § 3A1.1(b) of the United States Sentencing Guide lines. In particular, Mr. Becenti asserts that the district court erred becau se it failed to make a- 2 -

particularized finding of vulnerability sufficient to justify the enhancement. We exercise jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291. We affirm the sentence imposed by the district court. On April 12, 1997, defendant and an accomplice brok e into a residence on the Navajo Nation Indian Reservation in Shiprock, N ew Mexico. Upon entering the house, they beat the three occupants, Mike Yazz ie, age 65, Mary Woody, age 60, and Janet Ahtcitty, age 37. They also ransacke d the house looking for valuables to steal. Finding little of value, Mr. B ecenti’s accomplice, Tyson Montoya, became frustrated and kicked over a wood s tove, sending live embers onto the floor and igniting a house fire. Mr. Bece nti and Mr. Montoya fled the burning house along with Ms. Woody and Ms. Ahtcitty . However, Mr. Yazzie could not escape due, in part, to the injuries he s ustained from the beating, and he died of smoke inhalation. On July 2, 1997, a federal grand jury returned a th ree-count indictment against Mr. Becenti and Mr. Montoya, charging them with first degree felonymurder in violation of 18 U.S.C. § 1111, arson, andburglary. Pursuant to a written plea agreement with the United States, Mr. Becenti pled guilty to a onecount information charging him with second degree m urder in violation of 18 U.S.C. § 1111. Prior to sentencing, Mr. Becenti fi led a timely objection to the presentence report (“PSR”) because it included a tw o-level increase to his base- 3 -

offense level due to Mr. Yazzie’s status as a “vuln erable victim.” At the sentencing hearing held on December 12, 1997, the d istrict court overruled Mr. Becenti’s objection to the PSR, finding that “[t]he enhancement is proper.” Sentencing Hr’g Tr. at 2. This appeal followed. Mr. Becenti argues that the district court erred wh en it enhanced his sentence under § 3A1.1(b) of the United States Sent encing Guidelines because it failed to make a sufficient finding of vulnerability. We review the district court’s interpretation and application of the Sentencing Gu idelines de novo. See, e.g. , United States v. Hershberger , 962 F.2d 1548, 1550 (10th Cir. 1992). However, the district court’s factual findings underlying a Sentencing Guideline enhancement, including whether a victim is vulnerab le for the purposes of § 3A1.1(b), are reviewed under the clearly erroneou s standard. See, e.g. , United States v. Tissnolthtos , 115 F.3d 759, 761 (10th Cir. 1997); United States v. Brunson , 54 F.3d 673, 676 (10th Cir. 1995). A finding is clearly erroneous only when it is “without factual support in the record, or if after reviewing all the evidence[,] we are left with the definite and firm conviction that a mistake has been made.” United States v. Beaulieu , 893 F.2d 1177, 1182 (10th Cir. 1990). Section 3A1.1(b) provides for a two-level increase in the base offense level when “the defendant knew or should have known that a victim of the offense was unusually vulnerable due to age, physical or mental condition, or that a victim- 4 -

was otherwise particularly susceptible to the crimi nal conduct.” Our case law makes clear that “[i]n order to classify a victim a s ‘vulnerable,’ the sentencing court must make particularized findings of vulnerab ility. The focus of the inquiry must be on the victim’s personal or individual vuln erability.” See Brunson , 54 F.3d at 676 (internal citations and quotations omitted). Defendant argues that because the PSR included a vu lnerable victim enhancement based solely upon Mr. Yazzie’s age and because the district court adopted the PSR’s findings, the court did not make a particularized finding sufficient to sustain the sentence enhancement. We disagree. While it is true that “a victim’s elderly status, without more, is insuff icient to justify a vulnerable victim enhancement,” Tissnolthtos , 115 F.3d at 761; accordUnited States v. Smith , 930 F.2d 1450, 1455 (10th Cir. 1991), here the di strict court, contrary to defendant’s assertion, did not base the sentence en hancement solely upon the victim’s age. In addition to adopting the PSR’s fi ndings, the court stated: The court takes judicial notice that the defendant and co-defendant forcibly entered the home of an elderly couple withthe intent to commit a burglary. The defendant ransacked the hom e, battered the three occupants and caused a fire that consumed the home. The victim, a 65 year old man[,] was unable to get out of the fire and died of carbon monoxide poisoning. Sentencing Hr’g Tr. at 5. Thus, the district courtindependently acknowledged that, in addition to his age, Mr. Yazzie had been b eaten and was unable to escape the burning house. As noted earlier, a district co urt’s finding of vulnerability for- 5 -

the purpose of § 3A1.1(b) will be upheld unless it is clearly erroneous. Here, the district court’s finding of vulnerability is adequately supported by facts in the record, including facts other than the victim’s age . Thus, we hold that the district court did not err in enhancing the defendant’s sent ence two levels pursuant to § 3A1.1(b) of the United States Sentence Guidelines . We therefore AFFIRM the sentence imposed by the district court. ENTERED FOR THE COURT,

Deanell Reece Tacha Circuit Judge